Neutral Citation: 1999 ONFSCDRS 235

FSCO A97-001944

BETWEEN:

ESTELLITA THAMBYAIYAH

Applicant

and

HALIFAX INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before: Shemin Manji

Heard: May 31, June 1, 2 and 3 and July 12, 13 and 14, 1999, at the Offices of the Financial Services Commission of Ontario in Toronto.

Appearances:

David MacDonald for Mrs. Thambyaiyah

Mark Wilson for Halifax Insurance Company

Issues:

The Applicant, Estellita Thambyaiyah, was struck by a motor vehicle while crossing the street on January 12, 1996. She applied for and received weekly income replacement benefits from Halifax Insurance Company ("Halifax"), payable under the Schedule.¹ Halifax terminated weekly income replacement benefits on December 20, 1996, on the basis that there was no objective impairment or disability that could be identified which would prevent Mrs. Thambyaiyah from returning to her pre-accident employment as a visiting homemaker. Some time towards the end of 1997, Mrs. Thambyaiyah's solicitors sought a comprehensive medical-legal multidisciplinary assessment, including a present needs assessment, from the Columbia Assessment Centre ("Columbia"). Mrs. Thambyaiyah submitted a claim for the cost of this assessment to Halifax. The claim was denied. The parties were unable to resolve their disputes through mediation, and Mrs. Thambyaiyah applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

The issues in this hearing are:

Is Mrs. Thambyaiyah entitled to income replacement benefits after December 20, 1996 pursuant to section 7 of the Schedule?
Is Mrs. Thambyaiyah entitled to expenses incurred by her for the assessment by Columbia pursuant to section 36 of the Schedule?

Mrs. Thambyaiyah also claims interest on any amounts owing and her expenses incurred in respect of the arbitration.

Result:

Mrs. Thambyaiyah is entitled to income replacement benefits from December 21, 1996 onwards, with interest on the overdue benefits.
Mrs. Thambyaiyah is not entitled to expenses for the assessment by Columbia pursuant to section 36 of the Schedule.
Mrs. Thambyaiyah is entitled to her expenses incurred in respect of the arbitration.

EVIDENCE AND ANALYSIS:

Background and Issues:

Mrs. Thambyaiyah, now aged 51, is married. She presently lives with her husband and 16 year old daughter, Jennifer.

On January 12, 1996, Mrs. Thambyaiyah was crossing a street, on her way home from work, when she was struck on the left side of her body by a motor vehicle making a left turn. The impact caused her to fall backwards to the right, hitting the right side of her body and striking her head on the pavement. The motor vehicle was travelling at about 25 kilometres per hour at the time of the impact.

It is not clear whether Mrs. Thambyaiyah lost consciousness immediately following the accident. Mrs. Thambyaiyah has some recollection of the accident. However, Mrs. Thambyaiyah said that she found out some time after the accident that there was a woman who witnessed the accident who said that, following the impact, Mrs. Thambyaiyah was dragged under the vehicle for some distance. The witness also said that after the driver of the vehicle stopped the vehicle, he pulled Mrs. Thambyaiyah out from under the vehicle. Mrs. Thambyaiyah does not recollect being under the vehicle that struck her or being helped out from under the vehicle by the driver.

After the accident, Mrs. Thambyaiyah had difficulty standing and therefore remained lying on the ground. She felt numbness on the left side of her body and the right side of her body was in pain. The police came to the scene of the accident and she was taken by ambulance to St. Michael's Hospital where she was examined and x-rays taken of her pelvis and lumbar spine. No fractures were detected and after being prescribed pain medication, Mrs. Thambyaiyah was released to go home a few hours after she was brought to the hospital.

Mrs. Thambyaiyah testified that her pain got worse the night of the accident. The next day she could hardly move because of pain and also because she felt dizzy.

Mrs. Thambyaiyah went to see her family physician, Dr. Laing P. Velicaria, on January 14, 1996. She complained of pain in the back of her neck and on the left side of her body, including her hips, shoulders, arm, elbow, leg and back. She also complained of pain and bleeding in her lower gums when brushing. Dr. Velicaria prescribed a muscle relaxant and analgesic and referred Mrs. Thambyaiyah to International Managed Health Care ("FMHC") for therapy.²

Mrs. Thambyaiyah saw Dr. Velicaria and attended at IMHC for therapy regularly and frequently in the months following the accident. During those visits, she continued to complain of left shoulder, left buttock, nape, sacral and left knee pain. In addition, she reported that she was experiencing dizziness and headaches intermittently since the accident. She also complained of loss of sleep and concentration and memory difficulties.

Over the ensuing years, Mrs. Thambyaiyah has continued to complain intermittently of left shoulder, left hip/buttock, nape, sacral and left knee pain. She has also continued to complain intermittently of dizziness, headaches and difficulties in concentrating and remembering.

Mrs. Thambyaiyah was working full time at the time of the accident as a visiting homemaker for the United Way Visiting Homemakers Association ("VHA").

VHA describes Mrs. Thambyaiyah's job responsibilities, in part, as follows:

Provides home-management duties for individuals or families who require help to maintain standards of living within their own home. Clients may include: the elderly; disabled; children and their parents; or those who are ill and unable to carry out normal household routines, or activities of daily living (such as light cleaning and laundry, child care) ...

These duties include: accompanying client on walks, to shopping or to attend appointments; providing companionship and encouraging the client towards independence.

Provides food planning and preparation. Ensures that meals are nutritious and take into consideration special diets.

Helps the client with personal care such as grooming, washing, exercising, skin care, bathing, dressing, eating, toileting, brushing of teeth. These activities may include assisting the client with mobility and transfers and or changing the client's bedding.

Provides caregiver relief to those caring for ill or disabled family members.

Under the heading "Effort & Working Conditions That Apply To This Position," VHA description states "(w)ork involves considerable³ lifting, bending and moving in awkward positions. May be required to use a stepladder on a limited basis."

Both Mrs. Thambyaiyah and Ms. Susan Power, Human Resource Manager at VHA, testified that 80 percent of Mrs. Thambyaiyah's clients were disabled and in wheelchairs and needed help with personal care, including transfers. Mrs. Thambyaiyah visited three or four clients in a day at different places and spent two to three hours with each client.

Mrs. Thambyaiyah's health in the years preceding this accident was good, except for sporadic difficulties with high blood pressure. There is no history of any previous accidents or any injuries to the areas of her body affected in this accident.

Following the accident, Mrs. Thambyaiyah applied for statutory accident benefits from Halifax. Halifax paid Mrs. Thambyaiyah weekly income replacement benefits in the amount of $375 per week from January 19, 1996 until December 20, 1996. These benefits were terminated on the basis that there was no objective impairment or disability that could be identified which would prevent her from returning to her pre-accident activities. In support of its decision to terminate benefits, Halifax relied on the report of the Mount Sinai Hospital Designated Assessment Centre ("Mount Sinai Hospital DAC") dated October 29, 1996.

At some point, and it is not clear from the evidence when, Mrs. Thambyaiyah claimed and was denied the cost of a multidisciplinary assessment, which included an assessment of present needs, by Columbia. Halifax denied funding of all medical and rehabilitation benefits on the basis that Mrs. Thambyaiyah was able to engage in her pre-accident employment since October 1996.

Mrs. Thambyaiyah disputes Halifax's decisions to terminate weekly income replacement benefits after December 20, 1996 and its refusal to pay for the Columbia assessment.

Is Mrs. Thambyaiyah entitled to income replacement benefits after December 20, 1996?

Mrs. Thambyaiyah submits that she is entitled to income replacement benefits after December 20, 1996 because she has continued to suffer a substantial inability to perform the essential tasks of her pre-accident employment as a visiting homemaker as a result of two separate ailments: 1) a condition called bilateral benign paroxysmal positional vertigo and 2) pain as a result of soft tissue injuries she sustained in the accident to her left shoulder, neck, back and left knee.

Benign paroxysmal positional vertigo

Shortly following the accident, Mrs. Thambyaiyah started to complain to Dr. Velicaria and the health care professionals she was seeing at IMHC that she was experiencing episodes of dizziness. Initially she complained that the dizziness would occur when sitting and getting out of bed in the morning and would be accompanied by nausea or vomiting and also sometimes by a headache. Later she complained that dizziness would occur when she turned her head or looked down or when she was moving very quickly and that it would come on suddenly or unpredictably. She complained about this problem regularly and she complained that it was interfering with her ability to perform her activities of daily living, particularly ironing, vacuuming and laundry. She told Dr. Velicaria and the health care professionals she was seeing at IMHC that she had to perform her housework very slowly for fear of getting dizzy. On March 14, 1996, she told Dr. Velicaria that she had fainted on March 8, 1996. On June 10, 1996, she reported to Dr. Velicaria that several days prior when cleaning a glass door she became dizzy and in trying to regain her balance, broke the glass and cut herself.⁴

Dr. Velicaria referred Mrs. Thambyaiyah to Dr. Ayoob Mossanen, a neurologist, in respect of her complaints of dizziness. Dr. Mossanen examined Mrs. Thambyaiyah on May 6 and August 21, 1996 and on both occasions concluded that she was suffering from a mild labyrinthine concussion — a disturbance affecting the inner ear. He also concluded that this condition was caused by the accident.⁵

On December 7, 1996, Mrs. Thambyaiyah was seen by a Dr. M.J. Gawel, another neurologist, at the request of her solicitors. On examination, Dr. Gawel confirmed objectively⁶ that there was some labyrinthine dysfunction that was precluding Mrs. Thambyaiyah from returning to work.

On November 25, 1997, Mrs. Thambyaiyah was seen by Dr. Jim Haight, an otolaryngologist or ear, nose and throat specialist, in another medical legal consultation. Dr. Haight reviewed Mrs. Thambyaiyah's history, including the reports of IMHC and of the reports of Drs. Velicaria, Mossanen and Gawel. He further obtained information from Mrs. Thambyaiyah in respect of the characteristics of the dizziness that she was experiencing, including a description of what brought it on, and examined her. Dr. Haight concluded that Mrs. Thambyaiyah was suffering from bilateral benign paroxysmal positional vertigo — a disturbance of the vestibular portion of her inner ear⁷ — and that this was "almost certainly due to her motor vehicle accident."⁸ He noted that the type of dizziness that Mrs. Thambyaiyah was experiencing had been reported after motor vehicle accidents of a severity commensurate with that which Mrs. Thambyaiyah experienced.

Dr. Haight testified that he advised Mrs. Thambyaiyah not to return to her pre-accident job. Dr. Haight testified that benign paroxysmal positional vertigo can be very frightening and disabling. It can be provoked by a number of body movements — by looking down, looking up, looking to the side, bending down and sometimes by rapid head movements. He pointed out that Mrs. Thambyaiyah's position as a visiting homemaker required more movement than a sedentary position. It required frequent pushing, pulling and lifting. He stated that these movements cannot be done without bending. He noted that the position also required squatting or kneeling during the course of each working day. Each of these actions normally necessitates leaning forward and might therefore precipitate a fall. Dr. Haight stated that when Mrs. Thambyaiyah is cooking or ironing she might need to pick up something from the shelf or look down at the pan or sideways to answer a question. Any of these actions might induce a sensation of vertigo. The resulting loss of balance might cause her to put out her hand and scald it. Dr. Haight testified that the condition tends to come and go unpredictably. It may well prove impossible for Mrs. Thambyaiyah to develop the habit of not moving her head when she has been doing it all her life, in order to avoid a symptom which is generally not present, particularly when she is also reporting that she is experiencing difficulties with her short-term memory. Assisting another person while trying to do this further compounds the problem. She could develop vertigo when helping the person get into or out of the bath, for instance, and both of them might fall.

Mrs. Thambyaiyah relies in part on Dr. Haight's evidence in support of her position that after December 20, 1996 she has continued to suffer a substantial inability to perform the essential tasks of her pre-accident employment as a visiting homemaker. I found Dr. Haight's evidence to be very persuasive, and I accept Mrs. Thambyaiyah's position partially based on his evidence.

Halifax disputes Mrs. Thambyaiyah's position. While it accepts that Mrs. Thambyaiyah developed benign paroxysmal positional vertigo after the accident, it takes the position that the condition improved and was completely resolved between the time that Mrs. Thambyaiyah saw Dr. Gawel in December 1996 and Dr. Haight in November 1997.

Halifax submits that Dr. Mossanen only found a mild version of the condition in May and August 1996. It submits that none of the doctors who saw Mrs. Thambyaiyah after December 1996, including Dr. Haight, were able to find any objective signs that she still had the condition. Halifax submits that if Mrs. Thambyaiyah had been suffering from the condition in November 1997 when Mrs. Thambyaiyah was seen by Dr. Haight, Dr. Haight would have been able to find an objective sign that she had this condition. He found none. Halifax submits that in July 1998, Dr. Ronald Fenton, an otolaryngologist retained by Halifax, was also not able to find any objective sign that Mrs. Thambyaiyah was still suffering from this condition. Halifax also submits that Mrs. Thambyaiyah was seen on numerous occasions by Dr. Velicaria after December 1996, and there is no evidence that he found any objective evidence that Mrs. Thambyaiyah was suffering from the condition after that date.

Halifax submits that the statements Mrs. Thambyaiyah made to the health care practitioners she saw following the accident indicate that her dizziness was improving. For example, Dr. Velicaria's clinical notes indicate that five months post accident Mrs. Thambyaiyah was noticing improvement in her symptoms of dizziness. In April 1998, Mrs. Thambyaiyah reported to Ms. Sandra Wong, occupational therapist at Columbia, that her dizziness was "almost gone."

Halifax submits that Dr. Fenton testified that 90 to 99 percent of the individuals who suffer from trauma-induced benign paroxysmal positional vertigo become symptom free after a year.⁹ It submits that while Dr. Haight did not agree with Dr. Fenton's 90 to 99 percent figure, he agreed that as a general rule individuals who suffer from trauma-induced benign paroxysmal positional vertigo are likely to get better over time and that a large majority (80 percent) get better within one year from the date of the trauma. Halifax submits that the medical evidence and Mrs. Thambyaiyah's own statements to Dr. Velicaria, IMHC and other medical professionals indicate that she fell within the 80 percent of individuals who recover within a year.

I agree with Halifax that none of the doctors who saw Mrs. Thambyaiyah after December 1996 were able to find any objective signs that she still has benign paroxysmal positional vertigo. I also agree with Halifax that the condition has generally improved. However, I do not agree that the condition has resolved. Dr. Haight testified and, on cross-examination, Dr. Fenton agreed with him, that this condition is difficult to assess because it tends to come and go unpredictably¹⁰ and the fact that Mrs. Thambyaiyah did not demonstrate objective signs of having this condition when she was being assessed by doctors after December 1996 does not mean that the condition is not present or has resolved. Dr. Gawel observed an objective sign of labyrinthine dysfunction almost one year post-accident (at 11 months) and Dr. Velicaria's notes indicate that the complaints of dizziness have continued well after the one year period, although the frequency of Mrs. Thambyaiyah's complaints decreased after the first year. As recently as May 11, 1999, Mrs. Thambyaiyah advised Dr. Velicaria that she was still experiencing dizziness although it was not as bad and as frequent as before.

I note from Dr. Fenton's report of July 24, 1998 that when Dr. Fenton was testing Mrs. Thambyaiyah's balance system with the Hall-Pike manoeuvre, although this test did not produce any objective signs of labyrinthine disorder, Mrs. Thambyaiyah did complain of mild dizziness when getting up from the left lateral position. Dr. Fenton said in his report that this was for an extremely brief period, however, he also said that the fact that she had these symptoms indicated that things had not returned completely to normal and that after two and one half years he thought it unlikely that there would be a total disappearance of all of her symptoms.

Dr. Haight testified that he found Mrs. Thambyaiyah to be an honest person and if Mrs. Thambyaiyah was complaining of the problem then the problem had not gone away. Dr. Haight also testified that since Mrs. Thambyaiyah has continued to complain of dizziness one year after the anniversary of her accident,¹¹ she is one of the 20 percent of individuals who are not likely to recover from this condition.

Halifax submits that even if Mrs. Thambyaiyah continued to have benign paroxysmal positional vertigo after December 20, 1996, it was and is not disabling — she can work with the condition. Halifax relies on the evidence of Dr. Fenton in support of this proposition. Although Dr. Fenton was of the opinion that the fact that Mrs. Thambyaiyah had mild symptoms when he was testing her balance system indicated that things had not returned completely to normal, he was also of the opinion that at the time of his assessment of Mrs. Thambyaiyah the symptoms were no longer incapacitating or prevented her in any way from "performing a normal occupation" or "pursuing gainful employment."

Dr. Fenton's opinion is at variance with that of Drs. Haight and Velicaria. Like Dr. Haight, Dr. Velicaria is of the opinion that Mrs. Thambyaiyah should not return to her pre-accident job as a visiting homemaker. He is of the opinion that she is not capable of performing the regular duties of her pre-accident employment because she still experiences dizziness/vertigo with certain head movements and if she returned to her pre-accident employment she would be putting herself and/or the client she is working for in danger. Dr. Velicaria testified that Mrs. Thambyaiyah should be looking for employment which does not require frequent lifting and stooping/bending that would trigger dizziness.

I prefer Drs. Haight's and Velicaria's opinions over Dr. Fenton's opinion. Both Drs. Haight and Velicaria had a better understanding of the requirements of Mrs. Thambyaiyah's pre-accident employment as a visiting homemaker and the functional problems she was experiencing as a result of benign paroxysmal positional vertigo than Dr. Fenton. Further, at the hearing, on cross-examination, Dr. Fenton acknowledged that Mrs. Thambyaiyah's pre-accident employment was more likely to provoke an "attack" of benign paroxysmal positional vertigo than if she was working in a sedentary position.

Halifax submits that the basis of the concern in respect of Mrs. Thambyaiyah's ability to work as a visiting homemaker is that she may hurt herself and/or her clients if she experiences an episode of dizziness while she is working. However, Halifax submits that Mrs. Thambyaiyah has never fallen as a result of the condition. Halifax also submits that since the accident, Mrs. Thambyaiyah has undergone two functional abilities assessments, one disability DAC assessment and one situational work assessment and has never fallen or lost her balance during any of these assessments during which she has been asked to complete a myriad of tasks.

I agree that the evidence indicates that Mrs. Thambyaiyah has never fallen as a result of benign paroxysmal positional vertigo. In March 1996, Mrs. Thambyaiyah did report to Dr. Velicaria that she fainted while in the bathroom. However, at the hearing, on cross-examination, she testified that she did not know how this came about. I also agree that the evidence indicates that she has not fallen or lost her balance during any of the assessments in which she has participated. However, she has reported to Dr. Velicaria on a number of occasions that she has come close to fainting or falling because of dizziness. Further, while Mrs. Thambyaiyah did not fall or lose her balance during any of the assessments, she did report dizziness on two occasions during the Mount Sinai Hospital DAC assessment. The first time was while she was carrying a weighted box and the second time was during the ironing assessment. When she experienced dizziness during the ironing assessment, Mrs. Thambyaiyah stopped the task abruptly, sat down and closed her eyes with her head in her hands. It is not clear from the evidence for how long she sat and whether she went on to complete the ironing task. However, the method which she used to cope with the vertigo affected the length of time that she took to complete the task. Mrs. Thambyaiyah testified at the hearing that because she had only two to three hours to spend at each client's home, she had to move quickly to complete all the requisite tasks.

Halifax also submits that Mrs. Thambyaiyah does not experience the episodes of dizziness frequently. It points out that Mrs. Thambyaiyah told Dr. Fenton in July 1998 that she had only one episode of imbalance a week lasting up to five minutes. Halifax submits that even though Mrs. Thambyaiyah may believe that each episode lasts for five minutes, Dr. Haight testified that each episode of vertigo lasts only for 20 seconds, although the person going through the experience may get the sensation that it is for a longer period of time. Halifax submits that because the episodes are infrequent and last only for 20 seconds, if Mrs. Thambyaiyah were to experience dizziness while working, she would be able to control her balance and steady herself sufficiently to protect herself. She could also sit down for a brief period of time whenever she experiences the condition.

I agree that the evidence indicates that there has been a decline in the frequency of the episodes of vertigo that Mrs. Thambyaiyah experiences. However, according to Dr. Haight the decline in frequency may be a result of Mrs. Thambyaiyah avoiding assuming positions which may provoke the condition. Once she is back at work she would not be able to avoid the positions that provoke the condition (for example, her job requires frequent bending and stooping) and she may experience an increase in the number of episodes of vertigo. Further, while each episode of vertigo may only last for 20 seconds, the time that Mrs. Thambyaiyah may need to recover from each episode may be significantly greater. Mrs. Thambyaiyah told Dr. Fenton that each episode is often followed by a headache which lasts for several hours.

Based on the evidence, I am not as confident as Halifax that once Mrs. Thambyaiyah returns to work she will be able to control her balance and not hurt herself and/or her client when she experiences vertigo. I agree with Drs. Haight and Velicaria that if Mrs. Thambyaiyah experiences vertigo while she is in the process of transferring a client from the wheelchair to the bathtub, there is a real or material risk that she would not be able to control her balance and that she would injure herself and/or her client.

Halifax also submits that Dr. Velicaria's notes indicate that Mrs. Thambyaiyah had returned to her other pre-accident activities such as yoga and line and ballroom dancing. It submits that these activities would also provoke benign paroxysmal positional vertigo if it were present. The fact that a return to these activities has not provoked the condition means that it is not present.

Dr. Velicaria's notes indicate that Mrs. Thambyaiyah recommenced line and ballroom dancing after her therapy at IMHC was terminated¹² so that she could get some exercise. However, his notes also indicate that she experienced difficulty performing these activities.¹³ Mrs. Thambyaiyah reported to Barry Brown, family consultant,¹⁴ in or around April 13, 1998, that although she was continuing to attend dance classes since the accident, she was able to participate only in slow dancing routines and had to sit down frequently during the classes. She also reported significant pain with line dancing.¹⁵

Halifax submits that Dr. Velicaria's notes and Dr. Harold Becker's report of April 1998 (which forms part of the multidisciplinary assessment conducted by Columbia), indicate that since the end of 1996, it is the apprehension or fear of dizziness and not real dizziness which has been of concern to Mrs. Thambyaiyah.

I disagree. Dr. Velicaria's notes indicate that Mrs. Thambyaiyah has complained both of dizziness and the fear of dizziness (more of the former). It is the real fear or risk of injury to herself and others as a result of the dizziness that she has been experiencing that has been of concern to Mrs. Thambyaiyah.

My finding that Mrs. Thambyaiyah continued to suffer a substantial inability to perform the essential tasks of her pre-accident employment after December 20, 1996 as a result of benign paroxysmal positional vertigo is based to a significant extent on Mrs. Thambyaiyah's complaints of dizziness to Dr. Velicaria and other health care practitioners who treated or assessed her. Halifax submits that I should not rely on Mrs. Thambyaiyah's subjective complaints because she is not a credible person. It submits, among other things, that during her testimony, in her examination-in-chief, she overstated the number of times she fell as a result of dizziness. It submits that on cross-examination she admitted that she fell only once. It also submits that Mrs. Thambyaiyah initially testified that since the accident her daughter Jennifer had taken over responsibility for most of their housework, indicating that she (Mrs. Thambyaiyah) has not been doing very much. However, Halifax submits that it was clear from Jennifer's testimony and subsequently from Mrs. Thambyaiyah's own testimony, on cross-examination, that after the accident Mrs. Thambyaiyah continued to do most of the housework, including cooking, laundry, cleaning and shopping as Jennifer was not around much.

I agree with Halifax that in her testimony Mrs. Thambyaiyah exaggerated the effect of the accident on her ability to perform her activities of daily living, however, I am not prepared to dismiss her complaints of dizziness to Dr. Velicaria and other health care practitioners, for this reason. I note that most health care practitioners who have treated or assessed her have consistently found her to be co-operative, helpful, honest and direct in her presentation and motivated to return to work. For example, Dr. Velicaria testified that Mrs. Thambyaiyah was an honest person and a hard worker who from the beginning wanted to return to work. Dr. Fenton testified that he never thought that she was consciously exaggerating at any point. He stated that he believes that she gave him an accurate reflection of the problems she was experiencing. Dr. Haight echoed this statement. He stated that he believed that she gave him an honest account of her history. I also note the opinion of Barry Brown, family consultant, as set out in his Family Assessment Report dated April 13, 1998¹⁶ that:

although numerous medical reports seem to indicate that Mrs. Thambyaiyah is capable of resuming her role as a gainfully employed visiting homemaker, it is readily apparent that if she were able to assume employment responsibilities she would be doing so at this time...Mrs. Thambyaiyah gleaned significant personal fulfilment from her work. That she feels considerable shame in being unable to provide financially for her family as she had reinforces the opinion that should she be able to maintain gainful employment, she indeed would be doing so.

In conclusion, I find that after December 20, 1996 and up to the date of the hearing, Mrs. Thambyaiyah has continued to suffer a substantial inability to perform the essential tasks of her pre-accident employment as a visiting homemaker as a result of benign paroxysmal positional vertigo which was caused by the accident of January 12, 1996.

Disability as a result of the soft tissue injuries to the left shoulder, neck, back and left knee

I am not persuaded, on a balance of probabilities, that Mrs. Thambyaiyah also suffered a substantial inability to perform the essential tasks of her employment as a visiting homemaker after December 20, 1996 as a result of the soft tissue injuries she sustained in the accident on January 12, 1996.

Dr. Velicaria's notes and the reports of IMHC indicate that Mrs. Thambyaiyah made significant progress in recovering from her soft tissue injuries following the accident. They indicate that within a few months after the accident she was reporting overall improvement of function and symptoms of 80 to 100 percent and she was claiming that it was only her headaches and the dizziness that she was experiencing which were interfering with her activities of daily living and ability to perform simulated job tasks.

Notwithstanding Mrs. Thambyaiyah's reports of improvement, Dr. Velicaria's notes do show that Mrs. Thambyaiyah's complaints of pain in her neck, left shoulder, left arm, low back, left knee and left hip/buttock did not stop completely at any point — they waxed and waned — sometimes aggravated by a change in weather or with certain postures and activities. As late as May 12, 1999, Mrs. Thambyaiyah was reporting that she was experiencing neck, left shoulder, left buttock and low back pain. However, the preponderance of the evidence indicates that the pain she has been experiencing after December 20, 1996 has not restricted her ability to perform the essential tasks of her employment as a visiting homemaker.

Dr. G.S. Conn, the only orthopaedic surgeon who assessed Mrs. Thambyaiyah, did not find any serious ongoing underlying musculoskeletal pathology that would prevent her from performing the essential tasks of her pre-accident employment as a visiting homemaker. Dr. Conn assessed Mrs. Thambyaiyah on March 28, 1996. In his report of April 2, 1996, Dr. Conn stated that while he did not find any serious ongoing, underlying musculoskeletal pathology "that is not to say that there would not be some symptoms associated with some excessive stresses that she may have been able to handle better prior to the accident." However, he also stated that these would not cause any harm and would resolve quickly.

Mrs. Thambyaiyah submits that the results of an MRI of her cervical spine conducted at the Sunnybrook Health Science Centre in July 1998 indicate that there is underlying musculoskeletal pathology that prevents her from performing the essential tasks of her pre-accident occupation as a visiting homemaker. The MRI showed small C4/5 and C5/6 central disc herniation and mild compression of the cervical cord at the C5/6 level.

I am not able to accept this submission because it is not clear to me whether the small C4/5 and C5/6 disc herniation and mild compression of the cervical cord at the C5/6 level are a result of the accident of January 12, 1996 or whether these problems occurred spontaneously. It is also not clear to me whether the symptoms that Mrs. Thambyaiyah is experiencing in her neck and left shoulder are a result of the disc herniation and the compression of the cervical cord.¹⁷ In any event, even if the symptoms are a result of these conditions, the question still is whether Mrs. Thambyaiyah suffers a substantial inability to perform the essential tasks of her pre-accident employment as a visiting homemaker as a result of these symptoms.

In his testimony at the hearing, Dr. Velicaria indicated that he was concerned more with the dizziness and headaches Mrs. Thambyaiyah was experiencing and felt that this was the reason she couldn't perform her pre-accident job rather than the pain from her soft tissue injuries. He indicated that the pain from the soft tissue injuries had "eased up" and she could work with this pain.

Mrs. Thambyaiyah participated in four disability evaluations. The first at the Canadian Back Institute ("CBI") in March 1996, the second at IMHC in July 1996, the third at the Mount Sinai Hospital DAC in October 1996 and the fourth at the Columbia Assessment Centre in April 1998. Three of the four functional abilities evaluations support her ability to perform the essential tasks of her pre-accident employment as a visiting homemaker.

Mrs. Thambyaiyah submits that I should reject the results of the functional abilities evaluations which support her ability to perform the essential tasks of her pre-accident employment as a visiting homemaker because they fail to evaluate or are inconclusive in respect of her ability to lift, carry and push/pull even though these activities account for more than 50 percent of her job.

I am not prepared to reject the results of the three evaluations on this basis. All three evaluations tested Mrs. Thambyaiyah's ability to lift, carry and push/pull. However, because the VHA job description does not set out the physical demands of Mrs. Thambyaiyah's job against which to compare her ability to lift, carry and push/pull, each evaluation addressed this gap in information in a different way. IMHC did not test Mrs. Thambyaiyah's ability to pull, carry and lift against any standard — it concluded that it could not determine if she could meet the job demands in pulling, carrying and lifting. The CBI relied on Mrs. Thambyaiyah for this information and found a match between Mrs. Thambyaiyah's "self reported critical job demands associated with her position as a Home Support Worker and her current physical abilities." The Mount Sinai Hospital DAC tested Mrs. Thambyaiyah's material handling abilities against industry standards for her occupation according to the Canadian Classification & Dictionary of Occupational Guidelines ("CCDO") and concluded that she had the physical ability to perform the positional demands of her pre-accident employment as a visiting homemaker, however, because no specific load requirements were given for the material handling section, it could not be determined with certainty whether she could meet the lift, carry and push/pull demands.

Mrs. Thambyaiyah relies on the functional abilities evaluation/situational work assessment conducted by Columbia. Ms. Sandra Wong, the occupational therapist who conducted the situational work assessment in which Mrs. Thambyaiyah participated on April 6, 7 and 8, 1998, was also confronted with this gap in information, i.e., the lack of information as to the physical demands of Mrs. Thambyaiyah's position. She addressed the gap in information by looking at the National Occupational Classification (NOC) — the successor to the CCDO. I do not find the results of the functional abilities evaluation conducted by Columbia more or less conclusive as to Mrs. Thambyaiyah's ability to lift, carry and push/pull than that of the functional abilities evaluations conducted by the CBI and Mount Sinai Hospital DAC.

Mrs. Thambyaiyah submits that the Mount Sinai Hospital DAC tested Mrs. Thambyaiyah for material handling activities only on an occasional basis when the evidence indicates that she was required to perform material handling activities on a constant or frequent basis.

I agree that this undermines the conclusion reached by the Mount Sinai Hospital DAC. However, there are deficiencies in the Columbia situational work assessment report as well. NOC classifies a homemaker as requiring medium-level strength demands. Medium-level strength demands require handling loads between 22 and 44 lbs. The results of the Columbia situational work assessment indicated that Mrs. Thambyaiyah was functioning within the range of medium physical strength demands. However, Columbia concluded, presumably based on information it received from Mrs. Thambyaiyah, although this is not clear from the situational work assessment report, that Mrs. Thambyaiyah did not meet the strength demands for her pre-accident job and therefore would encounter restrictions when assisting elderly patients with their personal care.

Further, while both the CBI and the Mount Sinai Hospital DAC attempted to test Mrs. Thambyaiyah's ability to transfer a patient, Columbia did not.¹⁸

Mrs. Thambyaiyah submits that I should accept the results of Columbia's situational work assessment over the results of the other assessments because it is the only assessment that was performed two years after the accident.

I disagree. The evidence in this case indicates that Mrs. Thambyaiyah achieved maximum medical recovery in respect of her soft tissue injuries within a few months following the accident and also that her physical condition did not deteriorate significantly after the date of any of the functional abilities evaluations that occurred within two years of the accident. In these circumstances, I do not see any reason why I cannot rely on any or all of the functional abilities evaluations conducted within two years of the accident.

Mrs. Thambyaiyah also submits that I should accept the results of Columbia's situational work assessment over the results of the other assessments because the Columbia assessment was done over three days. In contrast, the assessment at CBI was done over two days and the assessments at IMHC and the Mount Sinai Hospital DAC were done in one day. Mrs. Thambyaiyah submits that Dr. Parker, one of the Mount Sinai Hospital DAC assessors, acknowledged in his testimony that the results of a longer assessment are likely to be more accurate in predicting Mrs. Thambyaiyah's ability to function in her job.

I do not see a significant difference between an assessment conducted over two days and one conducted over three days.

I am not persuaded, on a preponderance of the evidence, that Mrs. Thambyaiyah also suffered a substantial inability to perform the essential tasks of her employment as a visiting homemaker after December 20, 1996 as a result of the soft tissue injuries she sustained in the accident of January 12, 1996.

Conclusion

I have concluded that Mrs. Thambyaiyah suffered a substantial inability to perform the essential tasks of her employment after December 20, 1996 as a result of benign paroxysmal positional vertigo. In the result, I find that she is entitled to weekly income replacement benefits from December 21, 1996 onwards and beyond 104 weeks of the onset of her disability and up to the date of the hearing,¹⁹ with interest on the overdue benefits.

Is Mrs. Thambyaiyah entitled to expenses incurred by her for the assessment by Columbia Assessment Centre pursuant to section 36 of the Schedule?

Mrs. Thambyaiyah acknowledges that the multidisciplinary assessment conducted by Columbia was obtained primarily for the purposes of this arbitration. She, therefore, wishes to claim up to the maximum amount to which she would be entitled for the assessment under arbitration expenses. However, she seeks to recover the balance of the cost of this assessment under subsection 36(1)(h) of the Schedule. Subsection 36(1)(h) provides as follows:

36.—(1) If an insured person sustains an impairment as a result of an accident, the insurer shall pay for all reasonable expenses incurred by or on behalf of the insured person as a result of the accident for,

(h) other goods and services of a medical nature that the insured person requires.

Halifax submits that Mrs. Thambyaiyah should not be able to recover any portion of the cost of the Columbia assessment under subsection 36(1)(h).

Other than presenting the assessment report itself, no specific evidence was adduced by Mrs. Thambyaiyah in support of her submission that the multidisciplinary assessment, which includes an assessment of present needs, constitutes "other good(s) and service(s) of a medical nature that (Mrs. Thambyaiyah) requires." The burden of proof lies with Mrs. Thambyaiyah. She must prove that the expense she is claiming falls under subsection 36(1)(h) of the Schedule. Mrs. Thambyaiyah has failed to do so in this case. Accordingly, I find that she is not entitled to claim any portion of the cost of the multidisciplinary assessment pursuant to subsection 36(1)(h) of the Schedule.

EXPENSES:

Mrs. Thambyaiyah is entitled to her reasonable expenses incurred in respect of this arbitration.

December 6, 1999

Shemin Manji Arbitrator

Date